MabVax Therapeutics Holdings Inc. (fka MBVXQ)

[surf1944]

31-Aug-2011

Entry into a Material Definitive Agreement, Financial Statements and Exhibits

Item 1.01 Entry into a Material Definitive Agreement.

On August 30, 2011 (the "Agreement Date"), Telik, Inc. (the "Company") entered into an At Market Issuance Sales Agreement (the "Sales Agreement") with McNicoll, Lewis & Vlak LLC ("MLV"), pursuant to which the Company may issue and sell shares of its common stock having an aggregate offering price of up to $7.0 million from time to time through MLV as the Company's sales agent.

MLV may sell the common stock by any method that is deemed to be an "at-the-market" equity offering as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the "Act"), including sales made directly on or through The NASDAQ Capital Market or any other existing trading market for the Company's common stock in the United States or to or through a market maker. MLV may also sell the common stock in privately negotiated transactions, subject to the Company's approval. Subject to the terms and conditions of the Sales Agreement, MLV will use commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws, rules and regulations to sell the Company's common stock from time to time, based upon the Company's instructions (including any price, time or size limits or other parameters or conditions the Company may impose). The Company is not obligated to make any sales of common stock under the Sales Agreement. The offering of shares of the Company's common stock pursuant to the Sales Agreement will terminate upon the earlier of (1) the sale of all common stock subject to the Sales Agreement,
(2) August 29, 2014 and (3) termination of the Sales Agreement. The Agreement may be terminated by MLV or the Company at any time upon 10 days notice to the other party, or by MLV at any time in certain circumstances, including but not limited to the occurrence of a material adverse change in the Company. The Company will pay MLV a commission equal to 4% of the gross proceeds of the sales price per share of any common stock sold through MLV under the Sales Agreement. The Company has also provided MLV with customary indemnification rights and, in certain circumstances, expense reimbursement for up to $30,000 of expenses.

The foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which is filed herewith as Exhibit 10.17 to this Current Report on Form 8-K and is incorporated herein by reference. This Current Report on Form 8-K also incorporates by reference the Sales Agreement into our shelf registration statement on Form S-3, filed with the Securities and Exchange Commission on August 8, 2011.

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation, or sale of the securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.